The Collapse of the Harm Principle

Abstract

This article argues that we have witnessed, over the course of the last two decades, a very significant transformation in the debate over the legal enforcement of morality. The triumph of the harm principle in Anglo-American legal philosophy in the 1960s and 1970s gave way, in the 1980s and 1990s, to a proliferation of conservative harm arguments. Armed with social science studies, with empirical data and with anecdotal evidence, the proponents of regulation and prohibition have shed the 1960s rhetoric of legal moralism and adopted, instead, harm arguments. Catharine MacKinnon, for example, has focused our attention on the multiple harms to women caused by pornography. The broken windows theory of crime prevention emphasizes how minor crimes (like prostitution and loitering) cause major crimes, neighborhood decline, and urban decay. The harm associated with the spread of AIDS has been used to justify increased regulation of homosexual and heterosexual conduct. The new temperance movement in Chicago focuses our attention on the harmful effects of liquor establishments on neighborhoods and property values. And the debate over marijuana - what used to be a victimless crime - now revolves around the harms caused by drug use versus the harms caused by the war on drugs. The proliferation of harm arguments has produced an ideological shift in the harm principle that has significantly changed the structure of the debate over the legal enforcement of morality. The harm principle has effectively collapsed under the weight of its own success. Claims of harm have become so pervasive that the harm principle has become meaningless. Today, the harm principle no longer serves the function of a critical principle because non-trivial harm arguments permeate the debates. Today, the issue is no longer whether a moral offense causes harm, but rather what type and what amount of harms the challenged conduct causes, and how the harms compare. On those issues, the harm principle is silent. This is a radical departure from the dominant liberal discourse of the 1960s, and has important implications for the way that we argue and resolve, today, controversies over the legal enforcement of morality. This article chronicles the structural transformation of the debate by tracing recent developments in a wide range of legal and political debates, including pornography, prostitution, drug use, homosexuality, loitering, alcohol consumption, and sexual offenses.